TEXAS REDISTRICTING & ELECTION LAW

Updates about ongoing redistricting litigation in the Lone Star State and coverage of election law more generally. This website's goal is to try to make sure the redistricting process and litigation over voting law is as transparent and accessible as possible to the public. Hopefully, it will be of some use to a broad range of interested parties, both lawyers and non-lawyers. Have questions, comments, suggestions, additional content, or a redistricting joke (or two)? Feel free to contact me: Michael Li, michael.li@mlilaw.com, 202.681.0641.
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Judge Lee Yeakel has entered an order setting a hearing for June 25 at 9:00 a.m. on dueling motions in the case challenging the population measurement used to draw the 2013 Texas senate map.

In that suit, plaintiffs backed by the Project for Fair Representation have asked the court to declare that the state’s exclusive use of total population, rather than eligible voters, when it drew the maps violates the 14th amendment’s equal protection clause.

At the June 25 hearing, the three-judge panel in the case will take up the State of Texas’ motion to dismiss the case as well as the plaintiffs’ motion for summary judgment.

The State of Texas has asked a three-judge panel to dismiss a suit filed earlier this month challenging the constitutionality of the state senate map adopted by the Texas Legislature.

That suit - backed by the Project for Fair Representation - alleged that the state senate map was unconstitutional because it was drawn solely based on total population and did not take into account fairly significant variations in the number of eligible voters in different districts.

The state’s motion told the court, however, that:

This suit should be dismissed for failure to state a claim upon which relief can be granted because Plaintiffs’ equal protection challenge to the Texas Senate District map is based on a legal theory that has never been recognized by any federal court. That is, Plaintiffs argue that the Equal Protection Clause requires Texas to draw Senate Districts to equalize CVAP; however, federal courts have repeatedly recognized that a state satisfies equal protection principles if it draws its state legislative maps - as Texas has done here - to equalize total population between districts. Because the sole legal theory upon which Plaintiffs base their case has no recognized basis in the law, this suit should be dismissed.

This week’s deadline for parties in the Texas redistricting case to file dispositive motions brought a motion for partial summary judgment by the State of Texas, asking the three-judge panel to rule:

  • That the plaintiffs’ 15th Amendment claims on the 2013 maps must fail because the 15th Amendment does not encompass a claim for vote dilution and because there is no evidence of intentional discrimination as to the 2013 maps,
  • That the plaintiffs’ 14th Amendment claims regarding the 2011 maps are not viable because those plans “were never used to conduct an election” and thus “could not have had a discriminatory impact on members of racial or language minority groups,”
  • That the Texas Latino Redistricting Task Force’s claim that changes made to HD 90 during the 2013 legislative session violated section 2 of the Voting Rights Act was not supported by evidence since “Hispanics continue to represent a majority of the district’s citizen voting age population and registered voters” - noting that in the 2014 Democratic primary incumbent State Rep. Lon Burnam “was unseated by the Hispanic-preferred candidate, Ramon Romero,”
  • That there was no evidence to support the Task Force’s claims of intentional discrimination in the redrawing of HD 90 in 2013,
  • That section 2 of the Voting Rights Act does not require the drawing of coalition districts “in which a combination of Hispanic and African-American voters would constitute a majority capable of controlling the outcome of elections,” and
  • That section 2 does not require Texas to ignore the whole-county rule in drawing state house districts.

In a contemporaneously filed motion to dismiss, the state also asked the court to dismiss all claims about the 2011 maps on grounds of mootness. The motion also asked the panel to dismiss theTexas Democratic Party’s partisan gerrymandering claim on the grounds that the claim was non-justiciable political question.

The plaintiffs in the newly filed case challenging the Texas senate map filed papers Monday asking the three-judge panel to rule in their favor without need for a trial.

Calling Plan S172 “patently unconstitutional” because it was drawn using total population rather than taking into account eligible voters, the plaintiffs told the court:

While perfect equality of voting may not be possible, a voter population maximum deviation greater than 10% from the ideally proportioned district is constitutionally suspect and must pass strict strutiny; a deviation exceeding 20% is per se unconstitutional. The maximum deviation of Plan S172, as the Supreme Court calculates that figure, is between 45%-55%, depending on which metric for voter population is utilized.

However, the plaintiffs took pains to distinguish their case from cases where the Fifth Circuit held that determination of what population metric to use was an “eminently political question [that] has been left to the political process.”

Stressing that they were “not ask[ing] this Court to enjoin Texas from considering total population,” the plaintiffs told the panel that:

Rather, they seek a declaration that Texas cannot ignore voter population and form districts based exclusively on total population when, as is the case here, doing so deprives voters [of] their constitutional right under the Equal Protection Clause to an equally weighted vote.

The State of Texas has asked Judge Orlando Garcia to reconsider the order he entered last week in the Texas redistricting case directing that the state turnover emails of legislators who are being represented by the Texas Attorney General’s office.

In a motion filed  Friday, Texas Attorney General Greg Abbott told Judge Garcia that he had made “two critical errors” in his ruling.

First, the Order treats numerous non-parties as parties to this litigation. Second, the Order determines that the Texas Office of the Attorney General (‘OAG’) has control over documents in the custody of any non-party who has requested legal representation by the OAG.

The motion also told the court that the production of legislator documents in the preclearance litigation in 2011 did not amount to a waiver, arguing that the production of documents in that case “was conducted under extreme time pressure” and that “[a]s a matter of practical necessity, the parties, including the State Defendants, went beyond their obligations under the Federal Rules of Civil Procedure.”

Judge Orlando Garcia has ordered Texas Attorney General Greg Abbott to turnover documents, including electronically stored information, of 23 legislators relating to Texas’ 2011 and 2013 redistricting plans.

Abbott had sought to avoid turnover of the documents, arguing that the State of Texas did not have legal “possession, custody, or control” of the documents and that any discovery of the documents would have to be obtained by subpoena served on each legislator separately.

Judge Garcia disagreed, explaining:

[T]he Attorney General’s office has claimed an attorney-client privilege with respect to 23 individual legislators in this case. In general, an attorney is presumed to have control over documents in its client’s possession … [I]t is inconsistent for the State to argue that on the one hand the Attorney General represents these individuals, but that for discovery purposes the United States must resort to Federal Rule of Civil Procedure 45.

The court’s turnover order included emails and other information stored in legislators’ personal email accounts.

However, the court said that its order only applied to the 23 legislators represented by Abbott’s office and that lawyers for the Justice Department would need to subpoena any legislator not represented by the Texas attorney general’s office.

In a separate order, Judge Garcia also granted a DOJ request that Abbott’s office to produce 2011 map drawers Ryan Downton and Gerardo Interiano for depositions.

Abbott had opposed the depositions, arguing that Downton and Interiano had been deposed in earlier rounds litigation over the maps and that the depositions should either be barred or limited to 2.5 hours each.

The court disagreed, however, ruling that:

The United States was not a party when the map drawers were deposed during the first round of discovery in the case, and the United States should have the opportunity to take their depositions on the claims and issues currently in dispute. While the other plaintiffs had the opportunity to depose the map drawers two years ago, they should have the opportunity to supplement their discovery by asking additional questions relating to facts, issues, and claims that have arisen in the last two years.

The court ordered that the Downton and Interiano be produced for up to four hours of depositions.

The Justice Department and private plaintiffs in the Texas voter ID case filed responses today (here and here) to a motion by Texas Attorney General Greg Abbott asking Judge Nelva Gonzales Ramos to quash subpoenas served on 13 current and former members of the Texas Legislature in connection with the case.

Abbott said that the documents sought by the subpoenas “shed no light on the Legislature’s official business or its reasons for passing SB 14” and that the breath of the subpoenas raised constitutional concerns.

The plaintiffs told Judge Ramos that Abbott’s assertions should be “flatly rejected.”

Instead, today’s filings told the court that documents about earlier voter ID proposals, the post-enactment implementation of SB 14, and immigration proposals considered by the Legislature in recent sessions, were all directly relevant to challenges to the voter ID law - noting that the court had already held that “overall balance of factors” weighed in favor of disclosure when it came to legislator documents in the possession of the AG’s office.

The plaintiffs, likewise, took issue with Abbott’s assertion that campaign documents were exempt from disclosure on the grounds that “‘many legislators would rightfully expect that private documents created in their personal capacity as candidates for office would not be subject to disclosure in a lawsuit brought against their official capacity.’”

Rather, the plaintiffs told the court that “the Legislators’ admission that the campaign documents were ‘created in [the Legislators’] personal capacity’ clearly takes those documents out of the realm of legislative privilege, and therefore they are subject to subpoena.”

DOJ lawyers similarly told the court that evidence from the section 5 case suggested that subpoenaing legislators’  personal email accounts was appropriate because at least some of the legislators who were highly involved in passage of the voter ID bill appeared to be using personal email accounts for official business.

The court holds a hearing on the motion this Thursday at 4:00 p..m.

Judge Nelva Gonzales Ramos has set a hearing for Thursday, May 1, at 4 p.m. on Texas Attorney General Greg Abbott’s motion to quash the subpoenas served on 14 members of the Texas Legislature in connection with the voter ID litigation.

Chief Judge Carl Stewart of the Fifth Circuit Court of Appeals entered an order this morning appointing a three-judge panel to hear the suit filed last week challenging the way Texas senate districts are drawn.

The appointment of the panel was required under federal law because the suit involves a challenge to a statewide redistricting plan.

In addition to District Judge Lee Yeakel, the order appointed Fifth Circuit Judge Catharina Haynes and Eastern District Judge Michael Schneider to the panel.

Both Haynes and Schneider were appointed to the bench by President George W. Bush.

Texas Attorney General Greg Abbott filed a motion Friday morning asking Judge Nelva Gonzales Ramos to quash subpoenas served by the Justice Department on 13 current and former members of the Texas Legislature in connection with legal challenges to the state’s voter ID law.

Abbott told the court:

[T]he subpoenas seek documents that are (a) less relevant or irrelevant; (2) unnecessary given the thousands of relevant documents in DOJ’s possession; and (3) more likely to provoke future timidity by legislators who will be forced to recognize that their private papers, even those unrelated to a challenged law, are violable.

The motion argued that DOJ’s current “document requests are much broader than the requests in the previous [preclearance] litigation, seeking documents related to legislative matters other than S.B. 14, such as every document on the topic of immigration, as well as campaign materials.”

Abbott said those documents “shed no light on the Legislature’s official business or its reasons for passing SB 14” and that:

A ruling that allows the Department of Justice to rummage around in the affairs of legislators that are unrelated to S.B. 14 interposes the very same federalism concerns that the U.S. Supreme Court found troubling about the Voting Rights Act’s preclearance regime.

The motion also said that some of the requested documents were protected by the attorney-client privilege.

Abbott previously asked the court to bar discovery from Texas legislators on the grounds of legislative privilege. However, Judge Ramos rejected Abbott’s broad privilege claim, holding, instead, that such documents were discoverable but reserving for later questions about their admissibility at trial. Judge Ramos also ruled that any documents not currently in the possession of the AG’s office would need to be subpoenaed from legislators - a step that led to today’s motion to quash.

The motion did not identify the legislators by name who received subpoenas.

U.S. District Judge Lee Yeakel has asked that Chief Judge Carl Stewart of the United States Court of Appeals for the Fifth Circuit appoint a three-judge panel in the case filed this week challenging the current Texas state senate map.

Notice here.

No move so far by any of the parties in the other Texas redistricting cases to have the new case transferred to San Antonio so it can be consolidated with the other pending redistricting cases.

What’s at issue?

The plaintiffs argue that the current Texas senate map (Plan S172) must be redrawn using “eligible voters” rather than “total population” - the measure long used by the Texas Legislature - because the latter now results in districts with significantly differing numbers of voters.

By not using eligible voters, the plaintiffs say the Texas Legislature violated the “one-person, one vote” principle of the Constitution’s Fourteenth Amendment by allowing some voters’ votes to count for more than those of others.

Why are there disparities?

In Texas, the major driver of disparities in the number of eligible voters is the high number of non-citizens in parts of the state - mainly its urban and suburban cores. For example, in places like Dallas and Houston, commonly accepted estimates are that around half of adult Hispanics are non-citizens.

Of course, disparities also can exist for any number of other reasons, including higher numbers of children under 18 in fast growing parts of the state or a larger number of people who are unable to vote because of felony convictions.

However, differing citizenship rates are, by far, the largest driver of disparities in the number of eligible voters.

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What does “eligible voter” mean?

In their complaint, the plaintiffs do not set out the specific way of calculating eligible voters that they believe should be used to draw districts.

However, they suggest that disparities exist using any of the common measurements of eligibility, including citizen voting age population (CVAP), registered voters, and non-suspense voters.

How would drawing districts using “eligible voters” change the current map?

At present, Texas senate districts have a target population of 811,147 people.

If courts were to require maps to be drawn using some measure of eligible voters, the target size of districts also would change.

For example, although Texas has over 25 million people, its citizen voting age population in the most recent Census Bureau report was estimated to be just 15,583,540. Using CVAP to draw districts would mean that each district would have a CVAP target of 502,695.

That target population would require significant reworking of districts that presently have large Hispanic populations.

In the Houston area, for example, SD-13, represented by State Sen. Rodney Ellis, has a CVAP population of only 419,035, and SD-6, represented by State Sen. Sylvia Garcia, fares even worse with just 377,505 citizens of voting age. Likewise, in the Dallas area, SD-23, represented by State Sen. Royce West, has just 456,955.

Even with permitted deviations from the target population, these districts would need to add population, mostly likely by drawing from neighboring Anglo-dominated districts. Though those people might or might not be Anglo, the need to add large numbers of people mean the demographics and electoral performance of the districts could change materially. In fact, the need to add people might very well jeopardize the protected status that those districts currently enjoy under section 2 of the Voting Rights Act.

In other words, this could be a very big deal not only for Hispanics but also potentially African-Americans.

There could be practical impacts as well for legislators since urban districts would likely end up with far greater numbers of total people - who, although they might not be able to vote, still have need for constituent services - and be much larger physically as well. 

Wasn’t there a similar case recently about the same issue?

Yes. In fact, it involved many of the same players.

In Lepak v. City of Irving, the lawyers in the Texas senate case - also backed  by the Project for Fair Representation - represented Irving residents in arguing that the city’s new single-member council district map was unconstitutional because it had been drawn using total population rather than CVAP. 

Both the district court and the Fifth Circuit ruled against the Irving plaintiffs, citing the Fifth Circuit’s ruling in Chen v. City of Houston, which held that the question of whether to use total population or CVAP was a political question and thus not reviewable by courts.

The Irving plaintiffs sought to have the decision reviewed by the Supreme Court, but the high court declined last April to take the case.

However, the Texas senate case potentially represents another opportunity to have the Supreme Court take up the issue since any appeal would go directly to the Supreme Court as a matter of right.

More background on Lepak here.

Will the suit be heard by the same court as the other Texas redistricting claims?

Right now, the new case is pending before Judge Lee Yeakel of the Austin division of the Western District of Texas.

However, it is possible that one or more (or all) of the parties in the existing redistricting cases could ask that the case be transferred to the San Antonio division so that it can be consolidated with the other cases.

Doing so certainly would make sense since the new case - like the existing cases - must be heard by a three-judge panel because it involves a challenge to a statewide legislative body.

On the other hand, while the San Antonio panel has experience with the current state senate map and knowledge of the disputes that gave rise to the map’s present form, there are no ongoing disputes over that map, other than disputes over the amount of attorneys fees awarded to State Sen. Wendy Davis and LULAC.

Does the suit challenge the state house or congressional maps?

No. The suit - for now - only challenges the state senate map.

Could the new case affect the 2014 election?

In theory, yes.

The plaintiffs’ court papers ask for the court to block the state from using Plan S172 and to “establish constitutionally valid state senate districts prior to the next scheduled state senatorial election” (i.e., the November 2014 election).

However, that would likely be a highly unpopular step among the winners of this year’s Texas primary - most of whom do not face serious competition this November - and it likely would be viewed with disfavor by the court and the bulk of the Texas political class as well.

In any event, it is by no means clear, even if the court were inclined to grant the relief sought, that the complicated process of drawing a new map could be completed in time before election deadlines kicked in.

This morning, two Texas voters filed a suit in federal court challenging the state senate map drawn by the Texas Legislature on the grounds that it violated the equal protection guarantees of the Fourteenth Amendment by using total population rather eligible voters to draw districts.

The plaintiffs in the case are backed by the Project for Fair Representation, which also helped back Shelby County’s challenge to section 5 of the Voting Rights Act as well as efforts to overturn affirmative action policies at the University of Texas at Austin.

The Center’s press release announcing the new Texas suit can be found here.

Bert Wein of the Washington D.C. firm of Riley Wein represents the plaintiffs as counsel of record in the case. Wein also argued both the Shelby County and the Fisher cases at the Supreme Court.

The case has been assigned Case No. 1:14-cv-00335-LY.

Lawyers for the Justice Department filed a motion yesterday in the Texas redistricting case asking the three-judge panel in the case to order the State of Texas to turnover legislative documents.

DOJ lawyers told the panel that “for the first two years of this litigation, Defendants produced legislative documents through party discovery.” 

However, in the most recent round of discovery, DOJ said:

Texas has refused to provide the information and has instead told the United States that it must subpoena documents from each legislator and individual for whom the request is made.

                                               …

There is no reason that justifies Defendants’ actions here. Defendants simply have reversed course and asserted that the Texas legislature is a third party and that the United States may obtain certain legislative documents only through subpoenas to individual legislators.

DOJ told the panel that the state’s position was inconsistent with long-standing practice in section 2 litigation:

In nearly fifty years of litigation under the Voting Rights Act, the United States has consistently brought claims under Section 2 against jurisdictions in their entirety. In these cases, the United States has consistent obtained legislative documents in party discovery.

African-American and Hispanic plaintiff groups in the Texas voter ID case filed an advisory on Monday with Judge Nelva Gonzales Ramos, outlining their proposal for how trial should be conducted.

The advisory responded to an earlier proposal by Texas Attorney General Greg Abbott that each side be given 24.5 hours of courtroom time to put on its case (including cross-examining witnesses of the other side).

African-American and Hispanic plaintiffs told the court that Abbott’s “proposed trial length of seven days is insufficient for all Plaintiffs to present all of the evidence and develop a complete record.”

Instead, they proposed that trial start on September 2 and conclude on September 19, giving each side 45 hours of trial time.

In making the request, the plaintiff groups noted that while the six complaints in the consolidated case “contain similar core allegations centering on Section 2 of the Voting Rights Act, several also include additional claims that broaden the proof issues beyond Section 2.”

They also told the court that they anticipated that there would be both more fact witnesses and more expert witnesses than in the section 5 preclearance case tried in Washington in early 2012.

The groups, however, offered a number of proposals to streamline the process, including permitting (but not requiring) use of declarations in lieu of direct testimony and allowing parties to use deposition and trial testimony from the section 5 case.

The advisory noted that it was filed on behalf of all plaintiffs in the case other than the Justice Department, who, the advisory said, had “not yet stated its position on this matter.”